JK 526 
1876 
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Copy 1 



THE VOTE 



THAT 



MADE THE PRESIDENT. 



BY 



DAVID DUDLEY FIELD. 






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NEW YORK: 
D. APPLETON & COMPANY, 

549 & 551 BROADWAY. 

1877. 



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COPYKIGHT BT 

DAVID DUDLEY FIELD. 

1877. 



THE VOTE THAT MADE THE PRESIDENT. 



At ten minutes past four o'clock on the second morning 
of the present month (March, 1877), the President of the 
Senate of the United States, in the presence of the two Houses 
of Congress, made this announcement : " The whole number 
of the electors appointed to vote for President and Vice-Presi- 
dent of the United States is 369, of which a majority is 185. 
The state of the vote for President of the United States, as 
delivered by the tellers, and as determined under the act of 
Congress, approved January 29, 1877, on this subject, is : 
for Rutherford B. Hayes, of Ohio, 185 votes; for Samuel J. 
Tilden, of New York, 184 votes;" and then, after mention- 
ing the votes for Yice-President, he proceeded : " Wherefore I 
do declare, that Rutherford B. Hayes, of Ohio, having received 
a majority of the whole number of electoral votes, is duly 
elected President of the United States for four years, com- 
mencing on the fourth day of March, 1877." 

Mr. Hayes was thus declared elected by a majority of one. 
If any vote counted for him had been counted on the other 
side, Mr. Tilden, instead of Mr. Hayes, would have had the 
185 votes ; if it had been rejected altogether, each would have 
had 184 votes, and the House of Representatives would im- 
mediately have elected Mr. Tilden. One vote, therefore, put 
Mr. Hayes into the presidential office. 



To make up the 185 votes counted for him, 8 came from 
Louisiana and 4 from Florida. Whether they should have 
been thus counted is a question that affects the honor, the 
conscience, and the interests of the American people. There 
is not a person living in this country who has not a direct 
concern in a just answer. "Not one will ever live in it whose 
respect for this generation will not depend in some degree 
upon that answer. 

The 12 votes were not all alike. Some had one distinction, 
some another. But, not to distract attention by the discus- 
sion of several transactions instead of one, and because 
one in the present instance actually determined the result, I 
will confine my observations to a single vote. For this pur- 
pose let us take one of the votes from Louisiana, that, for 
instance, of Orlando H. Brewster. 

Brewster was not appointed an elector, inasmuch as he did 
not receive a majority of the votes cast by the people of 
Louisiana, and inasmuch also as he could not have been ap- 
pointed if he had received them all. 

He did not receive a Majority or the Yotes. 

It would be a waste of time and patience to go through 
the testimony taken by the two Houses of Congress for their 
own information, before they consented to call in the advice 
of the Electoral Commission. The evidence of wrongs on 
both sides, and the irreconcilable contradictions of witnesses, 
made President Seelye and Mr. Pierce, of Massachusetts, de- 
clare it to be impossible for them to reach a satisfactory con- 
clusion upon the facts, and compelled them to break away from 
their party, and refuse to abide by the advice of the Commis- 
sion. There are certain things, however, which we know be- 
yond dispute, or about which there is and can be no contro- 
versy, and these only will I mention. We know that the 
number of votes cast in Louisiana for the Tilden electors, tak- 
ing the first name on the list as representing all, was 83,723, 
but that the certificate of the Returning Board put them at 
70,508, turning Mr. Tilden's majority of more than 6,000 into 
a majority for Mr. Hayes ; and we know that the reduction was 
made by throwing out more than 13,000 votes of legal voters 



voting legally for Mr. Tilden, and that mor£ than 10,000 of 
these were thrown out upon the assumed authority of a statute 
of Louisiana, which in terms gave the board power to throw 
out votes, upon examination and deliberation, " whenever, 
from any poll or voting-place, there shall be received the 
statement of any supervisor of registration or commissioner 
of election, in form as required by section 26 of this act, on 
affidavit of three or more citizens, of any riot, tumult, acts 
of violence, intimidation, armed disturbance, bribery, or cor- 
rupt influences, which prevented, or tended to prevent, a fair, 
free, and peaceable vote of all qualified electors entitled to 
vote at such poll or voting-place." 

Whether the statute itself has its warrant in the Constitu- 
tion is a question not necessary now to be considered. For 
my part, I cannot see the authority for taking out of the 
ballot-boxes the ballots of lawful voters and throwing them 
away because other voters did not vote, whatever may have 
been the cause of their not voting, whether they were fright- 
ened, foolish, or perverse. I cannot for the life of me perceive 
that the State can be held to have elected persons whom it 
did not in fact elect, because it is conjectured, or even made 
probable, that if voters who kept away from the polls had in 
fact attended and voted, they would have made a majority for 
these persons. 

Without going into that question, however, and assuming 
for the sake of the argument that the statute had all the 
authority of the most clearly valid statute that was ever passed, 
it is certain that the only ground upon which a vote could have 
been thrown out, for intimidation or other corrupt influence, 
was the statement of a supervisor of registration or commis- 
sioner of election, founded upon the affidavits of three citizens. 
When, however, the vote of Louisiana was before the Electoral 
Commission, the following offer was made by counsel : 

u "We offer to prove that the statements and affidavits purporting to 
have been made and forwarded to said Keturning Board in pursuance 
of the provisions of section 26, of the election law of 1872, alleging riot, 
tumult, intimidation, and violence, at or near certain polls, and in certain 
parishes, were falsely fabricated and forged by certain disreputable persons 
under the direction, and with the knowledge, of said Returning Board, 



6 

and that said Returning Board, knowing said statements and affidavits to 
be false and forged, and that none of the said statements or affidavits were 
made in the manner or form or within the time required by law, did know- 
ingly, willfully, and fraudulently, fail and refuse to canvass or compile 
more than 10,000 votes lawfully cast, as is shown by the statements of 
votes of the Commissioners of Election." 

This offer the Commission rejected by a vote of 8 to 7. 
In the Commission Mr. Abbott moved the following : 

" Besolved, That testimony tending to show that the so-called Return- 
ing Board of Louisiana had no jurisdiction to canvass the votes for elec- 
tors of President and Vice-President is admissible." 

This was rejected by the same vote. 

In explaining the reason of their decision in the case, the 
Commission used the following language : 

" And the Commission has, by a majority of votes, decided, and does 
hereby decide, that it is not competent, under the Constitution and the 
law as it existed at the date of the passage of said act, to go into evidence 
aliunde, the papers opened by the President of the Senate, in the pres- 
ence of the two Houses, to prove that other persons than those regularly 
certified to by the Governor of the State of Louisiana, on and according 
to the determination and declaration of their appointment by the return- 
ing officers for elections in the said State prior to the time required for 
the performance of their duties, had been appointed electors, or by coun- 
ter-proof to show that they had not; or that the determination of the 
said returning officers was not in accordance with the truth and the fact, 
the Commission, by a majority of votes, being of opinion that it is not 
within the jurisdiction of the two Houses of Congress, assembled to count 
the votes for President and Vice-President, to enter upon a trial of such 
questions." 

Whether, therefore, the decisions of the Commission or 
the reasons given for them be sound or unsound, it may be 
assumed, that Brewster did not receive a majority of the 
votes cast by the people of Louisiana, and that the action of 
the Returning Board in cutting down the majority of his 
competitor, so as to reduce it below his, was taken without 
jurisdiction, and upon the pretense of statements and affi- 
davits which they themselves had caused to be forged. 



Beewster could not have been appointed Elector if he 
had received the yotes of all the people of louisiana. 

He had been made Surveyor-General of the United States, 
for the District of Louisiana, on the 2d of February, 1874; 
was recommissioned by President Grant on the 11th of Feb- 
ruary, 1875, and is at present exercising the office. Whether 
he has ever been out of the office depends upon the facts 
now to be mentioned. Eight or nine days after the election 
of November 7, 1876, at which he was a candidate on the 
Republican electoral ticket, there was recived at the Depart- 
ment of the Interior, from the hands of the President, this 
letter : 

Monroe, November 4, 1876. 
Dear Sib : I hereby tender my resignation of the office of Surveyor- 
General of the State of Louisiana, with the request that it be accepted 
immediately. With many thanks for your kindness, 

I remain, yours respectfully, 

O. H. Beewster. 
U. S. Grant, President United States. 

When the letter was written does not appear. It is cer- 
tain that Brewster was acting as Surveyor-General on the 10th 
of November. 

On the 16th of November a letter was addressed to the 
Commissioner of the General Land-Office, as follows : 

Department op the Interior, i 
Washington, November 16, 1876. J 

Sir : I have received the resignation of Mr. Orlando H. Brewster, 
Surveyor- General of Louisiana, which he has requested may take effect 
immediately. Please inform Mr. Brewster that his resignation has been 
accepted by the President, to take effect November 4th instant, that being 
the date of his letter of resignation to this Department. 

Very respectfully, 

Z. Chandlee, Secretary. 

At what time, if ever, the Commissioner informed Brew- 
ster of the acceptance of his resignation we do not know, but 
it could not have been earlier than the 20th of November. 

On the morning of the 6th of December, the four men 
who assumed to act as the Eeturning Board of Louisiana filed 



8 

in the office of the Secretary of that State a certificate that 
Brewster, with seven other persons, had been appointed presi- 
dential electors. There was then on the statute-book of Lou- 
isiana this enactment : 

" If any one or more of the electors chosen by the people shall fail 
from any cause whatever to attend at the appointed place at the hour of 
4 p. m. of the day prescribed for their meeting, it shall be the duty of the 
other electors immediately to proceed by ballot to fill such vacancy or va- 



"What Brewster did is thus told by Kellogg, one of the 
Hayes electors, on his examination at Washington in Jan- 
uary : 

" Q. Did Levissee and Brewster vote at the meeting of electors ? 
A. I believe they did. 

Q. Was not an appointment made for somebody to fill Brewster's 
place ? 

A. I believe that that is the case. 

Q. Who was appointed to fill Brewster's place ? 
A. Brewster himself. 
Q. The same man ? 
A. The same man. 

Q. Were you also instructed by these committees (National and Con- 
gressional Kepublican Committees) how to dispose of Brewster and Le- 
vissee ? 

A. My recollection is that some one of the electors had received a let- 
ter suggesting that in case of a vacancy or in case of the absence of Le- 
vissee and Brewster, they should be chosen in their own places. That is 
my recollection. 

Q. And yet they absented themselves from the electoral college, and 
you filled their vacancies with themselves? 

A. They were absent from the college when the college met, and we 
filled their vacancies by themselves." 

Being thus installed, they voted for Mr. Hayes within an 
hour after they were chosen to fill their own vacancies ; and 
three days afterward Brewster addressed the following letter 
to the President : 



New Orleans, Louisiana, December 9, 1876. 
Sie : I respectfully apply to be appointed Surveyor- General for the Dis- 
trict of Louisiana. Commendations from prominent gentlemen will be 
submitted to your Excellency to justify the appointment. 
I have the honor to remain 

Your very obedient servant, 

Oelando H. Beewstee. 
U. S. Grant, President United States, Washington, D. C. 

The reappointment was made on the 5th of January, 1877. 
The Chief of the Appointment Division in the Interior De- 
partment was asked and testified abont it as follows: 

" Q. Who recommended his appointment in January ? 

A. I think the probability is (although there is no evidence of it) that 
there was no recommendation, further than his own application to the 
President. 

Q. You do not know of any recommendation ? ' 

A. I do not know of any. 

Q. There is none on file ? 

A. There is none on file to the best of my knowledge.- There is none 
on file in the Interior Department." 

Who does not perceive the shallow trick by which Brew- 
ster pretended to have divested himself of his Federal office 
that he might vote ; only to be reinvested as soon as he had 
voted ? 

The letter of resignation, with its false date, and its pre- 
tended acceptance, to take effect as of a time past, were evi- 
dent shams to make it appear that he was not holder of a Fed- 
eral office when he was elected ; his affecting to be absent on 
the 6th of December, and coming in immediately to fill the 
vacancy occasioned by his own absence, in order to make it 
appear that his appointment was made on that 6th of Decem- 
ber, instead of the 7th of November, and his barefaced appli- 
cation on the third day thereafter to be reappointed to the 
Federal office, from which he could not possibly have perfected 
his resignation before the 20th of November — all these were 
but so many contrivances to evade the highest enactment 
known to our civil polity. In the eye of reason and of law, 
he acted during the whole period under that influence of office 
which it was the design of the Constitution to prevent, and he 



10 



must have entered more thoroughly into the work of his Fed- 
eral master than if he had not gone through the form of re- 
signing, inasmuch as that placed him, more than before, in his 
master's power. 

Let us now place side by side the commandment of the 
Constitution and the resolution of the Electoral Commission : 



COMMANDMENT. 



" No Senator or Kepresentative, 
or person holding an office of trust 
or profit under the United States, 
shall oe appointed an elector." 



EESOLTJTION. 

" The Commission, by a majority 
of votes, is also of the opinion that 
it is not competent to prove that any 
of said persons, so appointed electors 
as aforesaid, held an office of trust or 
profit under the United States at the 
time when they were appointed, or 
that they were ineligible under the 
laws of the State, or any other mat- 
ter offered to be proved aliunde the 
said certificates and papers." 



It would be unjust to cast upon the Electoral Commission 
the blame of all the wrong that has been practised in this 
presidential count. The Commission was but a council of ad- 
vice, which Congress might have taken or not, as it pleased, 
the only condition being that, in order to reject it, both 
Houses must have agreed. The responsibility of the final de- 
cision lay, after all, upon Congress, or rather, upon the Sen- 
ate, which voted throughout to follow the Commission. 

The facts thus briefly recited present certain questions — 
moral, political, and legal — which cannot be considered too 
soon for our good repute and our self-respect. 



The Moral Question. 

Whatever differences of opinion there may be about the 
political and legal questions involved, there can be none about 
the moral. The presidential office is the gift of the people 
of the several States, of their own free-will, expressed accord- 
ing to the laws. A falsification of that will is an offense 
against the State where it is committed, and against all the 



11 

States. If the falsification is beyond the reach of the law, 
it is not beyond the reach of the conscience. A robbery is 
none the less a robbery because it is beyond the range of vi- 
sion or the arm of justice. If the possessor of an estate has 
entered through the forgery of a record or the spoliation of a 
will, which although believed by every neighbor is beyond judi- 
cial proof, all the world pronounces his possession fraudulent, 
even though he scatters his wealth in charities and gathers 
many companions around his luxurious table. The example 
•is corrupting, but it is against the eternal law of justice that 
the act shonld be respected or the actors continue forever to 
prosper. 

It is no answer to these observations to say that frauds 
have been practised on the other side. Unhappily there is too 
much reason to believe that neither party is free from prac- 
tices which are at once a scourge and a dishonor. Neither 
has the disgraceful monopoly of such practices, whichever 
may have the bad preeminence. But this is certain: one 
wrong neither justifies nor palliates another. 

There is no set-off known to the moral law. Because A 
has defrauded B, that is no reason why B should defraud A. 
If it were so, society would go on forever in a compound ratio 
of crime. The first breach of the law would furnish excuse 
for the second, and their progeny would follow in sad pro- 
gression to the end of time. This is not, however, the moral 
condition of the world. The lex talionis has been abolished 
by the law of civilization and the higher law of the gospel. 

In this case of Louisiana there can be neither excuse nor 
palliation for the misconduct of the .Returning Board. 

On the 10th of November, President Grant telegraphed 
to the General of the Army instructions about troops in Lou- 
isiana and Florida, and added that " no man worthy of the 
office of President should oe willing to hold it if counted in 
or placed there by fraud. Either party can afford to be dis- 
appointed in the result. The country cannot afford to have 
the result tainted oy the suspicion of illegal or false returns P 
And again : " The presence of citizens from other States, I 
understand, is requested in Louisiana, to see that the Board 
of Canvassers makes a fair count of the vote actually cast. It 



12 

is to be hoped that representative and fair men of both parties 
will go." 

Did the President of that day misrepresent his party, or 
his successor, or has the party changed and the successor 
also ? Had the virtuous impulses of November faded away 
in February ? Was there a change of heart or a change of 
opportunity ? Neither Congress nor the Electoral Commission 
could give an honest title, without investigating the honesty 
of the transactions on which the title was founded ; and yet a 
President has been installed, in the face of rejected offers to 
prove frauds, the grossest, the most shameless, and the most 
corrupting, in all our history. 

Then what was the object of the committees of each 
House of Congress, sent into the disputed States ? Was it to 
blind the people? Was it to conceal a meditated fraud? 
On the very first day of the session, December 4th, Mr. Ed- 
munds, in the Senate, moved certain resolutions, of which 
this was one : 

" Resolved further, That the said committee" (the Committee on 
Privileges and Elections) " be, and is hereby, instructed to inquire into 
the eligibility to office under the Constitution of the United States of 
any persons alleged to have been ineligible on the 7th day of Novem- 
ber last, or to be ineligible as electors of President and Vice-Presi- 
dent of the United States, to whom certificates of election have been, 
or shall be, issued by the Executive authority of any State, as such electors, 
and whether the appointment of electors, or those claiming to be such, in 
any of the States, has teen made either by force, fraud, or other means 
otherwise than in conformity with the Constitution and laws of the United 
States, and the laws of the respective States ; and whether any such ap- 
pointment or action of any such elector has been in any wise unconstitu- 
tionally or unlawfully interfered with ; and to inquire and report whether 
Congress has any constitutional power, and, if so, what and the extent 
thereof, in respect of the appointment of or action of electors of Presi- 
dent and Vice-President of the United States, or over returns or certifi- 
cates of votes of such electors," etc. 

Was all this parade of committees sent hither and thither, 
summoning witnesses from far and near, committing the recu- 
sant to prison, and looking into State archives ; was all this a 
mock show, a piece of pantomime, for the amusement of the 
lookers-on, while conspirators were plotting how to conceal 



13 

what they pretended to be wishing to discover ? Taken all 
in all, the sounding profession, the bustling search, and the 
studied concealment, make a drama, half comedy and half 
tragedy, the like of which this generation has not seen till now, 
but the like of which it and its successors may see many times, 
if the audience does not hiss the play, and remit the actors 
to the streets. 

It has been objected, as a reason for not receiving offered 
evidence, that there was not time to take it before the 4th of 
March. How was that known ? Perhaps it could have been 
taken in an hour. Why was not the question asked, how much 
time the evidence would take, before it was excluded % If the 
certificate was false, and the falsehood was susceptible of 
proof, every effort possible should have been made to receive 
it, and receive it all. It is not commonly accepted as good 
reason for not searching after the truth, that the search may 
be difficult. Nor is it an unusual occurrence to require an 
argument or decision to be made within a period limited. 
Ten minutes' speeches in Congress, two hours' argument in 
the Supreme Court, a jury shut in a room until they agree 
upon a verdict, a court required by statute to render its deci- 
sion by a day fixed, are not so strange as to be remarkable, 
or found in practice so embarrassing as to cause the practice 
to be abandoned. 

Nor is it any answer to say that, if the offer of evidence 
had been accepted, the proof would have fallen short of the 
offer. That does not lie in the mouth of any one to say, who 
excluded the evidence, or justified its exclusion. The charac- 
ters of the counsel who made the offer, and of the commis- 
sioner who moved its acceptance, are a guarantee not only of 
their good faith, but of a reason for their belief, JSTo man has 
any right to deny that the proof offered would have been 
made good, who refused the opportunity. They who closed 
their ears should in decency keep their mouths shut. But it 
was not the counsel and the commissioner alone who believed 
that the proof offered would be made good. Every one ^ho 
witnessed the examinations in Washington, every one who 
read the testimony taken by the Congressional Committees in 
Louisiana, must have been satisfied that the conduct of the 



14 

Returning Board was throughout unlawful, wicked, and 
shocking, to the last degree. 

The title of the acting President, however valid in law, if 
valid at all, is tainted with fraud in fact. There was fraud 
in certifying that Brewster had received a majority of the 
votes of Louisiana, and fraud in attempting to evade that part 
of the Constitution which pronounced his disqualification. 
When the Electoral Commission advised Congress, and Con- 
gress accepted, "by not rejecting, the advice, that fraud could 
not be proved, that advice being but the equivalent of saying 
that fraud was of no consequence ; when it advised that the 
incompetency of the Returning Board, for want of jurisdic- 
tion, could not be proved, such proof being but the equivalent 
of proof that the pretended board was not a board at all; 
when it advised that the forgery, by direction of the board, 
of the statements and affidavits on which it pretended to act 
as true could not be proved, that proof being but the equiv- 
alent of proof that the pretended statements and affidavits 
Were not statements and affidavits at all ; when it advised 
that the barrier raised by the ^Constitution against the ap- 
pointment of a Federal officer to choose a Federal President, 
was not a barrier at all — the moral sense of the whole Ameri- 
can people was shocked. No form of words can cover up the 
falsehood ; no sophistry can hide it ; no lapse of time wash it 
out. It will follow its contrivers wherever they go, confront 
them whenever they turn, and as often as one of them asks 
the suffrages of his countrymen, he may expect to hear them 
reply, " Why do you reason with us, why seek to persuade us 
into giving you our votes, you that have taught us such a 
contempt for votes, that one fraudulent certificate is better 
than ten thousand of them ? " 

The Political Question". 

The advice of the Commission, with the consequent ac- 
tion of Congress, was a virtual affirmation of this proposition, 
that if on the morning of the 6th of December the Federal 
general commanding in Louisiana had surrounded the State- 
House with soldiers, and marching in eight of his captains, 



15 

had compelled the Returning Board to certify their appoint- 
ment as electors, and the Governor to add his certificate, 
Congress and the country would have been obliged to 
accept the votes of these captains as the constitutional and 
lawful votes of Louisiana electors. Whoever supposes that 
the union of these States can endure under such an interpre- 
tation of their fundamental law, must be endowed with credu- 
lity beyond the simplicity of childhood. The doctrine is an 
open invitation to transgression and usurpation. The judicious 
disposition of a few troops in the capitals of disputed States, 
on the day of the electoral vote, will perpetuate an Adminis- 
tration just so long as the audacity of a President, or the cu- 
pidity of his office-holders, may find it desirable ; unless, indeed, 
it be found, as is most likely, that the ways of fraud are cheap- 
er, easier, and less palpable than the ways of force. 

The Legal Question. 

As to the conclusiveness of the Governor's and canvassers' 
certificates. The doctrine of the majority of the Commission, 
and of the Senate, is, that the certificate of the Governor 
" on and according to the determination and declaration " of 
the State canvassers, cannot be shown to be false, though it 
may have been obtained by force or fraud. This doctrine ad- 
mits that the truth of the Governor's certificate can be in- 
quired into, else why the qualification that it must be " on 
and according to " the canvasser's certificate. It is said to be 
good only when in such accord ; therefore, when not in accord, 
it is good for nothing. We may, then, dismiss the Governor's 
certificate as of no account, and to be left therefore out of 
further discussion. The substance of the doctrine is, that the 
certificate of the State canvassers cannot be contradicted. 

This language must, of course, be understood, as used in 
reference to the question at that time depending ; that is to 
say, whether evidence to contradict or annul the certificate 
was then and there admissible. It had already been decided 
in the Florida case that no action of the State authorities, after 
the electors had voted, could affect the validity of the vote. 
Whether such action before the vote would have been of any 



16 

avail was not decided, and will never be decided, unless a 
radical change is made in the laws, since, according to present 
legislation, the vote of the electors treads fast on the heels of 
their appointment. In Florida, they were declared appointed 
at three o'clock in the morning, and they voted at twelve, jnst 
nine hours afterward. In Louisiana the interval was even 
less. To suppose that any State action would or could be had 
in such an interval, or in any interval possible under present 
laws, would be as wild as to suppose that counting in a Presi- 
dent by fraud will not be followed by imitators at future elec- 
tions. 

Taking the doctrine, however, precisely as it was applied 
in the instance of Louisiana, it is this : that the certificate of 
State canvassers cannot be impeached by evidence showing 
either that they had no jurisdiction to canvass the electoral 
vote at all, or that they had no jurisdiction to throw away 
votes that were actually cast, inasmuch as the power to throw 
away came into existence only when affidavits were laid before 
them, and there were no affidavits except such as they had 
caused to be forged, which, in the eye of the law, were not 
affidavits at all. 

One would say that such a doctrine, held up in its naked- 
ness, need hardly be attacked, for no man, not maddened by 
the fanaticism of party, would be found willing to defend it; 
yet if not defended, the disposition of the Louisiana case must 
be pronounced as unsound in law as it was injurious in policy 
and offensive in morals. But I go further, and deny the conclu- 
siveness of the canvassers' certificate under any circumstances. 
Suppose the question to be put thus : Can the certificate of 
State canvassers, acting within the scope of their authority, be 
questioned by evidence of mistake, fraud, or duress ; what 
should be the answer? Most certainly it can, should be 
answered. 

The statutes of the State may or may not have declared 
the effect of the certificate. In the case of Louisiana, this was 
the only statute relevant : 

" The returns of the elections thus made and promulgated shall he 
prima-facie evidence in all courts of justice and before all civil officers, 
until set aside after a contest according to law, of the right of any person 



17 

named therein to hold and exercise the office to which he shall by such 
return be declared elected." 

"Whatever doubt may have been expressed or felt whether 
this statute applied to the canvassers of a presidential election, 
or whether the words prima facie really meant prima facie, 
or whether " courts of justice," and " civil officers," included 
the Electoral Commission and the two Houses of Congress, there 
can be no doubt that " the returns of the elections thus made 
and promulgated " do not include returns canvassed without 
jurisdiction, or made under cover of pretended affidavits which 
the returning officers themselves caused to be forged. 

But, passing from this view of the subject, although this is 
sufficient to dispose of Brewster's pretensions, let us suppose a 
stronger case — the strongest supposable — that of a State Leg- 
islature directing not only the manner in which electors shall 
be appointed, but directing also that the certificate of the 
State canvassers shall be conclusive evidence that the State 
has appointed in the manner directed. 

Because the Constitution provides that electors shall be 
appointed by the State, in the manner directed by its Legisla- 
ture, it is thence inferred that the State must furnish the evi- 
dence of the appointment, and of course that none can be re- 
ceived except that which the State has furnished. And this 
is said to be the true States-rights doctrine. It is a strange 
sight, that of gentlemen clamoring for State rights who will 
not allow the people of Louisiana and South Carolina to 
take care of themselves ; who are even now debating at Wash- 
ington whether they shall not order new elections in those 
States, or which of two State governments they shall put up 
and which put down, and who since the war have treated the 
South as if no States were there, parceling it into military 
districts, and denying recognition until constitutional amend- 
ments were ratified. Their assertion of the conclusiveness of 
false and fraudulent canvassers' certificates, on the pretense of 
upholding State rights, should seem to be thrown in our faces 
by way of bravado, unless it be meant, indeed, for burlesque 
masking hypocrisy. But if the sight were not strange, and 
those gentlemen had been all along as careful of the rights of 



18 

the States as they are of their own places, there is nothing in 
the claim for the conclusiveness of canvassers' certificates 
which receives support from the doctrine of State rights. On 
the contrary, the rights of the States are best preserved by 
fencing them against force or fraud, by leaving them untram- 
meled in their own action, and leaving us untrammeled in 
finding out what that action has been. No rights are ever 
lost by letting in the light. 

A certificate can be conclusive evidence of the States' 
action, only when the act and the certificate are identical. 
If the Constitution had provided that there should be sent 
from each State a certificate signed by such persons as the 
Legislature might designate, declaring who should cast the 
electoral votes, then the only inquiry that could have been 
made at Washington would have been, whether the certificate 
sent up was so signed and the persons therein mentioned had 
voted ; but the Constitution has provided nothing of the kind. 
It has provided that the State shall appoint in the manner 
directed by its Legislature, and the inquiry thereupon to be 
made at the Capitol is, " Whom has the State appointed in the 
manner directed ? " 

We agree that the State has complete power, within cer- 
tain limits regarding the persons who may be appointed, to 
appoint its electors in any manner its Legislature may direct, 
but whether the State has done so is open to inquiry. Can- 
vassers of votes are not the State, or the Legislature of the 
State, and their certificate is nothing but evidence. Two 
facts are to be shown : one that the State has acted, and the 
other that the act has been in conformity to the directions of 
the Legislature. There is nothing in positive law, or in the 
reason of things, which, if the fact certified do not exist, 
requires that its falsity should not be open to proof. 

The Electoral Commission and the Senate read the Con- 
stitution as if the words following in italics were part of it : 

"Each State shall appoint, in such manner as the Legislature thereof 
may direct, a number of electors equal to the whole number of Senators 
and Kepresentatives to which the State may be entitled in the Congress ; 
but no Senator or Representative, or person holding an office of trust or 
profit under the United States, shall be appointed an elector." And the 



\ 



19 

certificate of such officers as the Legislature of the State may designate 
shall he conclusive evidence, not only that the persons certified were ap- 
pointed oy the State, out that they were appointed in the manner directed 
"by its Legislature, any mistake, fraud, or duress, of the certifying officers 
to the contrary notwithstanding. 

But the words of the Constitution as they stand do not carry 
with them the words in italics, or their substance ; and if it 
had been proposed to add them when the Constitution was 
presented to the people, I do not believe that they would have 
been accepted. 

Had it been suggested to the freemen of Massachusetts or 
Connecticut that they should give to the Legislature of an- 
other State not only the right of designating how the electors 
should be chosen, whose voices might make a President for 
them, but also the right to designate a permanent board, 
with power to say, in the face of the truth, who had or had 
not been chosen, the voices of John Hancock and Oliver 
Ellsworth would surely have warned the good people of their 
native Commonwealths against so dangerous a proposition. 

There is no necessary connection between an appointment 
and the certificate of it, unless the two acts are performed by 
the same persons. If the appointment of electors for Loui- 
siana had been committed to the Returning Board, then there 
might be reason for saying that the certificate was conclusive, 
because they appointed when they certified. But the board 
had not the power of appointment. That power could not 
have been given to them, if the Legislature of Louisiana had 
so intended, and it did not so intend. 

The power to give a conclusive certificate of appointment 
— that is, a certificate that precludes further inquiry — is vir- 
tually a power to appoint, since no one is then permitted to 
go behind the certificate to show that there was neither valid 
appointment nor form of appointment. Unless, therefore, 
the Legislature of Louisiana could, under the Constitution, 
confer upon the Returning Board power to appoint pres- 
idential electors for Louisiana, it could not confer upon it 
power to give a conclusive certificate of appointment. The 
constitution of this Returning Board is known to us all. It 
was a permanent body, holding for an undefined period, or for 



/ 



20 

life, consisting of four persons of one party, when there should 
have been five, of different parties ; and the four had per- 
sistently refused for years to select a fifth. To pretend that 
such a body was, or could lawfully be, empowered to appoint 
eight electors for the people of Louisiana, to match the eight 
who were appointed by the people of Maryland, would be 
simple effrontery ; and most certainly, as I have said, if they 
could not appoint, they could not give an incontrovertible 
certificate of appointment. The certificate is one thing ; 
the appointment another. The State appoints and the Legis- 
lature directs the manner of appointment, but neither can make 
true that which is false. 

Now as to the person appointed. Brewster was one of the 
very persons sought to be excluded by these words of the Con- 
stitution : " No Senator or Representative, or person holding 
an office of trust or profit under the United States, shall be ap- 
pointed an elector." He was, nevertheless, appointed, and he 
voted, and his vote made the President. How was this brought 
about ? The Commission answer, " That it is not competent 
to prove that any of said persons so appointed electors as afore- 
said held an office of trust or profit under the United States 
at the time when they were appointed."' Of course, if it was 
not competent to prove it, the fact itself must have been of no 
importance. 

Bentham's " Book of Fallacies " may be enriched, in an- 
other edition, with another fallacy, as remarkable as any he 
has recorded, to wit, that prohibition in the American Con- 
stitution means prohibition ! Talleyrand was once asked the 
meaning of non-intervention. " Non-intervention," he re- 
plied, " non-intervention means about the same thing as in- 
tervention." So, in our new constitutional vocabulary, prohi- 
bition means about the same thing as permission. 

It was, indeed, mentioned in the course of the argument, 
though the Commission does not appear to have thought much 
of it, that Brewster, having resigned his Federal office, and 
come in upon a new appointment, to fill his own vacant place 
on the 6th of December, being then both present and absent, 
the question of eligibility did not arise. But enough has 
been said about this resignation sham. If such a trick had 



21 

been played in respect to a note-of-hand of five dollars, there 
is not a justice of the peace who would not have denounced 
the trick, as conferring no right and affording no protection. 

The people of New York were amused, three or four years 
ago, with the feats of a juggler, who dressed one side of him 
as a man, and the other as a woman, and who turned about 
so quickly that he showed himself as two persons of different 
sexes in the same instant. Brewster's feat was not less remark- 
able : he was at once absent and present ; absent that he might 
be appointed, and present that he might vote ; went through 
the whole 'performance in less than an hour, absenting himself 
that he might be called in to be present, presenting himself 
though absent, voting ballots and signing certificates, show- 
ing himself to be as versatile and as agile as that master of 
iu^lerv. 

Upon what theory the Commission held that evidence 
could not be received of Brewster's Federal office at the time 
of his appointment does not appear. He certainly was in the 
prohibited category. A marriage between persons within pro- 
hibited degrees is not good, even if consummated. The 
prohibited union of two offices in the same person should not 
be thought a legal union, simply because it is practised. It has 
been said, though the Commission did not say it, that Brew- 
ster was at least elector de facto, and his vote was good, what- 
ever may have been his title. Then why should we trouble 
ourselves about the returning officer's certificate? If, as 
elector de facto, his vote was good, then it was good with- 
out the certificate, and all that the Commission should have 
looked into was the fact of voting, without troubling them- 
selves about the certificate of anybody or any other evidence 
of title. But, in truth, the distinctions between officers de 
facto and officers de jure have no application to the present 
case, and for this reason, among others, that two persons cannot 
hold the same office de facto. It is of the essence of a de-facto 
possession of office that it should be exclusive. The Chan- 
cellor of New York said, in a judicial opinion, more than 
thirty years ago : " When there is but one office there cannot 
be an officer de jure and an officer de facto both in possession 
of the office at the same time." This is true even when the 



22 

office is a continuing one. Who, for instance, can say which 
of the rival Governors in Louisiana or South Carolina at this 
moment is the Governor de facto f In deciding between them, 
would not all the world pronounce this the only question, 
which is Governor de jure f Much more is it true when 
the office is temporary, existing but for a moment, even if the 
doctrine of a de-facto officer can be applied to such an office 
at all. In the present case, Brewster went into the State- 
House and voted for Mr. Hayes ; at the same instant his rival 
went into the same State-House and voted for Mr. Tilden. It 
is absurd to pronounce Brewster, under such circumstances, 
an elector de facto, so as to make his vote for that reason good 
against his rival in the Tilden college, who was as much an 
elector de facto as was Brewster, and had this difference in 
his favor, that he was elected, and was eligible, while Brewster, 
the intruder, was not eligible, and was not elected. The only 
returns which went to the Electoral Commission were the 
double ones, where rival colleges of electors had acted at the 
same time in- the same State. In those cases, as already ob- 
served, the question of a de-facto elector could not arise. 
There was but one case, that of Wisconsin, where it could have 
arisen, and in that there was but a single return, which, of 
course, did not go to the Commission. 

Conclusion. 

Although these pages have been occupied with the vote 
of Brewster in the electoral college, it should not be under- 
stood, that the other seven votes which were counted from that 
State, and the four votes counted from Florida, were any bet- 
ter than his. The one here considered had its peculiarities ; 
the others had theirs. All of them were tainted, and the 
counting in of the President de facto was twelve times 
fraudulent. What maybe the outcome I do not know. That 
will depend upon the spirit of this generation and the spirit 
of those to follow. It is a consolation to know that the 
questions will be reviewed by a tribunal higher than the Elec- 
toral Commission, higher even than the two Houses of 
Congress — the American people — from whose j udgment there 
is no appeal but to the final judgment of history. 

New Yoek, March 28, 1877. 



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